The Civil Procedure (Amendment No. 2) Rules 2005

Explanatory Note

(This note is not part of these Rules)

The Rules amend the Civil Procedure Rules 1998 by—

(a) amending rule 1.2 (application by the court of the overriding objective), so that it is subject to rule 76.2 (modification to the overriding objective);

(b) inserting a new Part 76 containing rules about proceedings under the Prevention of Terrorism Act 2005; and

(c) modifying the application of certain other Parts of the Civil Procedure Rules 1998 for the purposes of those proceedings.

The Prevention of Terrorism Act 2005 provides for the making of `control orders' imposing obligations on individuals suspected of involvement in terrorist-related activity. The Act draws a distinction between `derogating' and `non-derogating' control orders. The question of involvement in terrorist-related activity must be satisfied to the civil standard of proof (balance of probabilities) when applying for a derogating control order.

Section 1 of Part 76 contains rules about the scope and application of the Part. Rule 76.2 modifies the overriding objective for the purposes of the Part by placing a duty on the court to ensure that information is not disclosed contrary to the public interest and by requiring that the overriding objective be read and given effect in a way which is compatible with that duty.

Section 2 contains rules about applications to the High Court relating to derogating control orders. An application by the Secretary of State for a derogating control order must be made in accordance with rule 76.4. Rule 76.5 requires the court, on making such an order, to give directions for a further hearing at which all the parties may be present. At that further hearing, the court must give directions under section 4(1)(b) of the Act for the holding of a full hearing. Applications for the renewal or revocation of a derogating control order, or for the modification of obligations imposed by such an order, must be made in accordance with rule 76.6.

Section 3 contains rules about—

(a) applications by the Secretary of State for permission to make non-derogating control orders;

(b) references of non-derogating control orders made by the Secretary of State without permission; and

(c) appeals to the High Court against-

(i) the renewal of a non-derogating control order,

(ii) the modification without the consent of the controlled person of an obligation imposed by a non-derogating control order, or

(iii) a decision by the Secretary of State on an application by the controlled person for the revocation of a non-derogating control order, or for the modification of an obligation imposed by it.

Rule 76.12 modifies the application of Part 52 (appeals) to appeals to the High Court relating to non-derogating control orders. Rule 76.14 prescribes the time limit for giving notice of appeal.

Section 4 modifies the application of Part 52 (appeals) to appeals to the Court of Appeal against an order of the High Court in control order proceedings.

The rules in Section 5 are general provisions applying to all proceedings to which Part 76 applies. They include provision for—

• applications for an order requiring anonymity for the controlled person (rule 76.19);

• hearings (rules 76.21 and 76.22)

• the appointment and functions of a special advocate and his communications with others (rules 76.23 to 76.25);

• the modification of the general rules of evidence and disclosure (rule 76.26);

• the filing and service by the Secretary of State of relevant material (rule 76.27);

• applications by the Secretary of State to withhold closed material from a relevant party (rules 76.28 and 76.29);

• the court to withhold any or part of its reasons when giving judgment if there is a risk of disclosing information contrary to the public interest (rule 76.32);

• applications by the Secretary of State for the court to reconsider the terms of any order or direction given in his absence, or the terms of any judgment, to prevent the disclosure of information contrary to the public interest (rule 76.33).